Starlite Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51209(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 21, 2012. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment dismissing the complaint, and denied plaintiff’s separate motion for a protective order.

ORDERED that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are granted and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, alleging that it had mailed three bills to defendant on March 5, 2010, and that defendant had not timely paid or denied them. Defendant opposed plaintiff’s motion and cross-moved for summary judgment, alleging that it had received one bill on April 5, 2010, and the other two on October 8, 2010, and that it had timely denied the bills based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath and independent medical examinations. Plaintiff separately moved for a protective order with respect to defendant’s notice of examination before trial. The Civil Court denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment dismissing the complaint, and denied plaintiff’s separate motion for a protective order.

While defendant demonstrated that it had received copies of the bills upon which the first and second causes of action were based on October 8, 2010, those copies are marked “resubmission.” Defendant did not address the allegations in the affidavit submitted in support of plaintiff’s motion for summary judgment that the bills had been mailed on March 5, 2010, by affirmatively stating that original versions of the bills had not been received earlier, or explaining how these bills had come to be resubmitted. As a result, defendant failed to rebut plaintiff’s prima facie showing that the bills had been submitted and not timely denied. Consequently, plaintiff is entitled to summary judgment on those causes of action and the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action should have been denied (see New Way Med. Supply Corp. v MVAIC, 46 Misc 3d 129[A], 2014 NY Slip Op 51805[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Defendant alleges that it received the bill upon which the third cause of action was based on April 5, 2010, while plaintiff alleges that it mailed the bill a month earlier. While it is possible that both of those allegations are true, plaintiff’s proof of mailing raises the possibility that defendant received the bill earlier. Consequently, as there is a triable issue of fact as to when defendant received the bill, and therefore whether it was timely denied, the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action should have been denied.

We reject plaintiff’s argument that a protective order is warranted under the circumstances presented.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are granted and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.